Searching Your Car When You're Stopped for Speeding

The Supreme Court

Many of us have been stopped for speeding at least once in our lives. Do you know that if you are stopped for speeding and an officer asks to search your car, you have the right to say no? Most people don't.

Robert Robinette, who was stopped for speeding in 1992 on Interstate 70 in Ohio, did not know he had the right to refuse a search. After Sheriff's Deputy Roger Newsome saw he had no prior violations, he gave Robinette a verbal warning about speeding and asked if he was carrying any illegal contraband in the car. Robinette said no and then consented to a request by Newsome to search the car.

Living Laws

When stopped for a speeding violation, you do have the right to refuse to allow your car to be searched for other reasons. You must know about that right. A police officer is not required to warn you of the right before asking for permission to search.

Newsome discovered a small amount of marijuana and one pill of the illegal drug “Ecstasy” in the car. Robinette was arrested and charged with possession of illegal drugs. The state trial court denied Robinette's request to suppress the drug evidence because he argued the search was not truly voluntary. He was convicted on the drug charge and appealed to the Ohio Supreme Court.

In 1995 the Ohio Supreme Court overturned the conviction, ruling that a driver's consent to a search is invalid unless the individual is informed that they are free to refuse the search and leave before consent to search is requested. The Ohio court said motorists must know when they are no longer obligated to cooperate with the police, so police cannot “turn a routine traffic stop into a fishing expedition for unrelated criminal activity.”

Court Connotations

Per se is Latin for “by itself.”

Sine qua non is Latin for “without which it could.”

The state appealed the Ohio Supreme Court decision to the United States Supreme Court. The United States Supreme Court overturned the Ohio Supreme Court by a vote of 7 to 2 in a decision announced November 18, 1996, finding that evidence collected during the time Robinette was stopped for speeding could be used even if he wasn't told he was “free to go.” The Court said that by granting permission to search the vehicle, Robinette had voluntary agreed to the search, so anything found during that search could be used against him.

Chief Justice Rehnquist wrote the opinion of the Court and was joined by Breyer, Kennedy, O'Connor, Scalia, Souter, and Thomas. Justice Ginsburg dissented and was joined by Stevens. In his opinion for the Court, Rehnquist wrote:

“We have previously rejected a per se rule very similar to that adopted by the Supreme Court of Ohio in determining the validity of a consent to search.

In Schneckloth v. Bustamonte (1973), it was argued that such a consent could not be valid unless the defendant knew that he had a right to refuse the request. We rejected this argument: 'While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent' … And just as it 'would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,' … so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.

“The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and '[v]oluntariness is a question of fact to be determined from all the circumstances.' … The Supreme Court of Ohio having held otherwise, its judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

Justice Ginsburg disagreed and filed a dissent, which was joined by Justice Stevens. In her dissent, Ginsburg wrote:

“From their unique vantage point, Ohio's courts observed that traffic stops in the State were regularly giving way to contraband searches, characterized as consensual, even when officers had no reason to suspect illegal activity. One Ohio appellate court noted: '[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to “practice” his drug interdiction technique' …

“Against this background, the Ohio Supreme Court determined, and announced in Robinette's case, that the federal and state constitutional rights of Ohio citizens to be secure in their persons and property called for the protection of a clear-cut instruction to the State's police officers: An officer wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first tell the motorist that he or she is free to go.

“The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred ….

“Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him …

“While the legality of consensual encounters between police and citizens should be preserved, we do not believe that this legality should be used by police officers to turn a routine traffic stop into a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such an unreasonable interference with their liberty.”

Based on this ruling, police can ask to search your car before letting you know you do have the right to go.